Estate of Hartman , 1899 Pa. Super. LEXIS 209 ( 1899 )

Opinion by

Rige, P. J.,

Upon distribution of the balance in the hands of the administrators of Absalom Hartman it appeared that the distributive share of James K. Hartman, a son, was more than equaled by his indebtedness to Ms father at the time of the latter’s death;, also that, after that date and before the real estate had been-sold under the provisions of the Act of June 12, 1893, P. L.. 461, Jolm D. Skiles had obtained judgments against James K. Hartman. The question is as to the authority of the orphans’ court, upon the application of the administrators, to set off' this indebtedness against his distributive share, to the exclusion of John D. Skiles, the judgment creditor.

In Wallace v. Keyser, 51 Pa. 493, Justice Agnew saidr “ Abstractly it is right that an heir to real estate who owed a debt to his ancestor should take his share less the debt, but the right is imperfect, and cannot be enforced until the party or the fund comes into the power of the law.” In that case the brothers and sisters of two of the sons of the intestate were-endeavoring by a bill in equity to control the proceeds of a private sale by the sons of their interest in their father’s real estate; on the ground of a debt due by them to their father’s estate. It will be observed that, in the case cited, the fund was not in-course of distribution in the orphans’ court, which has exclusive jurisdiction over the questions of advancement and distribution, and that, as pointed out in Hughes’s Appeal, 57 Pa. 179, this-was a consideration which had much to do with the decision that the bill in equity could not be sustained. The decision, in Wallace v. Keyser, .as explained in Hughes’s Appeal, is not in conflict with the later decision of the Supreme Court in Dickinson’s Estate, Cheney’s Appeal, 148 Pa. 142, in which it was-held that when a fund produced by a sale in partition of thereat estate of an intestate is before the orphans’ court for distribution, and one of the heirs was indebted to the decedent, the court has power to effect equality of distribution by applying his share of the estate to the indebtedness, to the exclusion of judgment creditors of the heir who obtained liens after the death of the intestate and before the sale of the real estate. Wentz’s Appeal, 126 Pa. 541, does not touch the question raised here. It is impossible to distinguish the present case from Dickinson’s Estate on any principle which ought to lead to a different result. This is so clearly shown in the opinion filed by the learned judge of the court below, that we do not deem it necessary or profitable to extend the discussion.

The decree is affirmed and appeal dismissed at the costs of the appellant.